#### Dan. H. Davis, Resp’t, *v.*John W. Gallagher *et al.,*Adm'rs., App’lts.

*(Supreme Court, General Term, Fourth Department,*

*Filed February 15,*1890.)

1. Services—Between relatives.

In an action for services and property rendered and furnished deceased by plaintiff, his stepson and a member of his family, it is not necessary for plaintiff to show an express and definite contract that he should he paid; but he must prove such facts and circumstances as would show an understanding or expectation on the part of the decedent to pay and on the part of the plaintiff to receive the value of such services and property.

2. Negotiable paper—Only pbima facie evidence of indebtedness.

The giving of a promissory note is only *prima facie*evidence of an accounting and settlement of all demands between the parties, and that the maker, upon such settlement, was indebted to the payee to the amount of the note. And the presumption of indebtedness may be repelled.

3. Evidence—Code Civ. Pro., § 829.

One though a party to the record may testify, under § 829, Code Civil Procedure, to conversations between herself and the decedent where her testimony is against her own interest.

4. Same.

Where defendants made plaintiff their witness as to a transaction between himself and decedent in order to charge him with the value of certain property, plaintiff is entitled upon his part to give the whole of the transaction and conversation.

5. Same—Admissions of administrator.

The admissions of an administrator are competent if made while he is-engaged in the performance of some act relating to the estate. The act should be such as called for and made the declaration pertinent, and the declaration should accompany such act, so as to constitute a part of the *res*

Appeal from a judgment, entered in Oswego county December 14, 1888, on the report of a referee, for $1,100.57 damages and $289.50 costs.

*J. W. Shea,*for app’lts; *O. 0. Brown,*for resp’t.

Martin, J.

One of the questions presented on this appeal is, whether the evidence was sufficient to sustain the judgment awarded. The plaintiff recovered for services performed by himself and wife for, and for hay, use of horse and pasturage furnished to, the defendant’s intestate. That the services were rendered and the property furnished and were of the value found was abundantly established by the evidence. The appellant, however, contends, that as the plaintiff was the stepson of the defendants’ intestate and a member of his family at the time, he was not entitled to recover, as there was no evidence of an express promise by the decedent to pay therefor.

*883We do not think it was necessary to entitle the plaintiff to recover that he should prove an express and definite contract, hut that in the absence of such an agreement it was incumbent upon him to prove such facts and circumstances as would show an understanding or expectation on the part of the decedent to pay, and of the plaintiff to receive, the value of such services and property. The authorities are to that effect *Wilcox*v. *Wilcox,*48 Barb., 329; *Conger*v. *Van Aernum,*43 id., 602, 607; *Dye*v. *Kerr,*15 id., 445; *Williams*v. *Hutchinson,*3 N. Y., 312, 317; *Lynn*v. *Smith,*35 Hun, 276; *Robinson*v. *Rayner,*28 N. Y., 496; *Markey*v. Brewster, 10 Hun, 16; affirmed 70 N. Y., 607; *Shakespeare v. Markham,*10 Hun, 322; *Green*v. *Roberts,*47 Barb., 521.

The evidence tended to show that the defendant’s testator was paid for the support, education and maintenance of the plaintiff during his minority by the use or interest on certain moneys belonging to him; that plaintiff worked for decedent during such time and until he was about twenty-three years of age, when a settlement between them was had, and the decedent conveyed to the plaintiff certain land for the consideration as stated in the deed, of $1,000, in payment of the money had by the decedent which belonged to and was due the plaintiff and amounted to about $470, and for his services up to that time; that in 1882, and subsequent to that time, the decedent at various times made statements which were to the effect that he was indebted to the plaintiff for his work and upon matters existing between them, and intended to show that it was intended by both parties that he should be paid therefor.

Without attempting to state the evidence in further detail, we think it was sufficient to justify the referee in concluding that there was an understanding or expectation by both parties that the plaintiff should be paid the value of the services rendered and property furnished, and therefore, that his finding that there was an implied promise to pay therefor should he upheld.

In 1879 the plaintiff gave the decedent a note for" $160 for money received by plaintiff of the decedent. This note was held by the plaintiff’s intestate until 1881, when it was destroyed. When the note was given the decedent said he did not want it, hut plaintiff stated that he wanted him to have it as it might be of use when they came to settle. The appellant insists that the giving of this note was *prima facie*evidence of a settlement of all claims and demands between the parties up to that time, and was controlling evidence that there was no agreement between them that plaintiff was to have pay for his services.

The giving of a promissory note is *prima facie*evidence of an accounting and settlement of all demands between the parties and that the maker was indebted to the payee upon such settlement to the amount of the note. This presumption is, however, only *prima facie,*and is liable to be explained or repelled by proof of the consideration of the note and of the occasion for and circumstances attending the giving of the same. *Lake*v. *Tysen,*6 N. Y., 461; *Dutcher*v. *Porter,*63 Barb., 20; *Sherman*v. McIntyre, 7 *884Hun, 593.. We think the appellant’s claim, that the giving of such note was controlling evidence that there was no agreement or understanding that plaintiff should be paid for his services, cannot be sustained. The evidence that the note was given for money had by the plaintiff of the decedent; that the decedent stated that he did not want a note, but plaintiff insisted upon giving it because it would be useful when they came to settle, we think completely repelled the presumption of settlement or that the plaintiff was indebted to the decedent to the amount of the note.

It is claimed that the referee erred in permitting Mrs. Price, the plaintiff’s mother and the widow of the decedent, to testify to the conversations between herself and the defendant’s intestate, on the ground that such evidence was prohibited by the provisions of § 829 of the Code of Civil Procedure. We do not think the exception to this evidence well taken. This ruling is, we think, sustained by the doctrine of the case of *Carpenter*v. *Soule,*88 N. Y., 251. Although Mrs. Price was a nominal party to the action, still she was not called to testify in her own behalf or interest. Her testimony was against her interest. “ The fact that the witness is a party on the record is no longer controlling.” *Whitehead*v. *Smith,*81 N. Y., 152.

It is also claimed that the provisions of § 829 were violated by permitting the plaintiff to testify to the arrangement made by him with the decedent about certain logs. The appellant made the plaintiff his witness, and proved by him that he had had logs of the decedent, and that he used a horse belonging to the decedent in drawing them to the mill. After this evidence was given, in explanation thereof, and for the purpose of giving the whole transaction relating to the subject, the plaintiff was asked to state under what arrangement with Mr. Price he drew such logs. This evidence was admitted under the defendant’s objection and exception. The defendant proved by the ¡Dlaintiff that he had had logs of the decedent for the purpose of charging him with their value. A transaction between the plaintiff and the decedent was thus shown by the defendant’s examination. When this was done the whole transaction was open, and the plaintiff was entitled to testify in his own behalf in relation thereto. Section 829 was not intended to abrogate the rule of evidence that where a party calls a witness and examines him as to a particular part of a transaction or communication, the other party may call out the whole of the transaction or communication bearing upon or tending to qualify the particular part to which the examination of the other was directed. *Merritt*v. *Campbell,*79 N. Y., 625; *Nay*v. *Curley,*113 id., 575; 23 N. Y. State Rep., 496. We think this evidence was admissible and properly received by the referee.

On the trial the referee permitted the plaintiff to prove what was said and done by the plaintiff and defendants when all were present and endeavoring to settle plaintiff’s claim, with the aid of two neighbors who were chosen by the parties to assist them in adjusting the matters in difference between them. This evidence *885was admitted under the defendants’ exception. The sole purpose of the evidence was to show the admissions of the defendants. When the plaintiff, the administratrix and administrator were all present, the defendants were expressly requested to state their objections or dissent to any claim or matter that should be made or stated by the plaintiff.

The admissions of an administrator are competent if made while engaged in the performance of some act ¡relating to the estate. The act should be such as called for and 'made the declaration pertinent, and the declaration should accompany such act so as to constitute apart of the *res gestee. Church*v. *Howard,*79 N. Y., 419. In *Whiton*v. Snyder, 88 N. Y., 299, 307, where an administrator in a proceeding before a surrogate testified that he had certain personal property in his possession, and his testimony was afterwards offered in evidence in an action to recover such property, it was held that it was admissible, that as he was resisting a claim to take away the property of the estate represented by him, his admissions were competent and a part of the *res gestee.*The principle of the cases cited would seem to justify the ruling complained of. Here the administrator and administratrix were engaged in trying to adjust and settle a claim made by the plaintiff against the estate, which was an act relating to the estate represented by them, and the admissions were pertinent to and a part of such act. "We think under the doctrine of the cases cited it should be held that the evidence of what occurred at that time was admissible.

The appellant in his brief states that no costs should have been allowed by the order of confirmation granted herein. The order shows that it was based on affidavits, none of which are set out in the appeal book. Under these circumstances, it is clearly our duty to affirm the order.

We have examined the other exceptions in the case, but have found none disclosing error, or that require special consideration. We think the evidence was sufficient to sustain the findings of the referee, and that no errors were committed in the rejection or admission of evidence which would justify a reversal of the judgment.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.